Complainant

Respondent

Anonymised Parties

{An Operations & Maintenance Manager}

{An Asset Management Company}

Representatives

Joanne Lane Micheál Glynn & Co. Solicitors

Grainne Donnelly Kennedys

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00026168-001

08/02/2019

The Complainant is a Senior Engineer. He was employed with the Company from 28th October 2014 to 1st August 2018 when he was made redundant.

The Complainant was employed as a Senior Engineer in the business since 28th October 2014. In his role, he was required to travel extensively around Ireland to carry out maintenance/supervisory duties/ sign off contract works particularly in relation to one substantial client.

The Complainant was notified by letter of 28th June 2018 that his role was “at risk” of redundancy, as the business were proposing to reorganise in line with current business structures in Northern Ireland. The Complainant was informed that the current supervisory duties of the Senior Engineer will be absorbed into a new position of Support Operations Manager. The Complainant disputes any genuine redundancy situation ever existed and says that another employee simply took over his position under a different title of Support Operations Manager.

The Complainant disputes that any sufficient time for proper consultation were put in place by the Respondent. While there were alternative roles available within the group to apply for example, Fire & Safety Engineer, he was not given a proper opportunity to apply for the position. The Complainant attended consultation meetings on 10th and 19th July when he went on annual leave in early August 2018. He felt bullied and coerced into accepting redundancy.

On return from annual leave he did endeavour to apply for the position of Fire & Safety Engineer around 14/15th August but was informed that the process had advanced and he was too late to apply. When he returned from annual leave, he received an email from his line manager dated 14th August 2018, stating we will be going ahead with your redundancy effective date on 15th August 2018. A period of time to stay on will not go ahead.

The Complainant submits there was no genuine redundancy situation. The Complainant relies on the statement of Charleton J in JVC Europe Ltd v Ponisi [2011] IEHC 279 that “It may be prudent and a mark of a genuine redundancy that alternatives to letting an employee go should be examined and that a fair selection procedure may indicate an honest approach to redundancy by an employee”.

The Complainant says no credible alternatives to letting the Complainant go were ever properly examined by the Company. There was no fair selection procedure and no proper consideration to alternative roles, or retaining his position. The Respondent failed to company with their obligations pursuant to statute and under the Redundancy Acts.

There was an onus on the Respondent to take reasonable steps to seek alternative positions or to offer reasonable alternative positions in the circumstances where the business in ROI has grown significantly with new contracts and organic growth.

No credible alternatives were offered to him at the consultation meetings. He was not given any proper chance to examine the position of “Support Operations Manager” as the time-frame was extremely tight as he was going on annual leave in early August 2018. His line manager was aware that his wife was being tested for a serious illness at the time. He was visibly upset in the consultation meeting.

The Respondent says that unhappiness of the Complainant is unjustified and without foundation. The hearings were fair and the selection procedure was fair, transparent and objective.

The Complainant began working with the Facilities Management division of the Respondent as a mobile technician on 28th October 2014. While his normal place of work was Dublin, his role involved extensive travel to client sites. He was promoted to the position of Senior Engineer on 1 February 2016. In this role he was paid 46,682 euro per annum gross.

On 28th June 2018 the Complainant’s line manager wrote to him following a discussion earlier that day, explaining in light of growth and development in the company a strategic review of the operational structure was performed by senior management, it was proposed the business would be re-organised to align with that structure in Northern Ireland. This left the Complainant’s role at risk of redundancy.

The Complainant was informed over the following weeks consultations would be held in relation to the process and the Complainant was entitled to be accompanied by another colleague or union representative. The role of Senior Engineer was no longer required and would be replaced with Regional Mobile Engineer. A new Operations Support Supervisor would be established to allow the company to deliver services in line with growth projected in the Republic of Ireland. The supervisory duties of the Senior Engineer would be absorbed into this position. The work of the Senior Engineer was to be absorbed by the new positions of Regional Mobile Engineer and Operations Support Supervisor, so the position was at risk of redundancy. The Complainant was also informed that the consultation process had formally begun.

This is in line with the employer’s redundancy policy. HR would provide support and he could speak to a qualified counsellor whenever necessary.

The Respondent held 3 consultation meetings with the Complainant, and sought suggestions as to alternatives to redundancy and responded to queries raised. The Complainant was accompanied at the meetings by his employee representative.

Following the meeting, the Complainant was informed he would receive pay until 15 August when his employment terminated, and would be paid statutory redundancy as no suitable alternative work had been identified for the Complainant. He was given the opportunity to appeal the decision.

The Respondent says the redundancy process was fair and transparent and the employer acted with empathy. The Respondent says there was no unfair selection for redundancy, as only 1 role was at risk that of Senior Engineer. The duties were being absorbed into Regional Mobile Engineer and Operations Support Supervisor, both role were open to him if he wished to apply.

The Respondent relies on the decision in A Sales Representative v A Medical Supplies Company 21 May 2019.

I have heard the oral evidence of the parties and considered their written submissions.

Section 6 (1) of the Unfair Dismissals Acts 1977-2015 provides the dismissal of an employee shall be deemed, for the purposes of this Act to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. The burden of proof rests on an employer to justify the dismissal is fair. S 6 (4) of the Act provides dismissal wholly or mainly from redundancy is deemed not to be unfair.

Section 7 (2)of the Redundancy Payments Act 1967 provides:

For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to –

(a) the fact that his employer has ceased, or intends to cease, to carry on that business in the place where the employee was so employer, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c ) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d)    the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforth be done in a different manner for which the employee is not sufficiently qualified or trained, or

 (e)    the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforth be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

In determining if a dismissal is an unfair dismissal, regard may be had if the Adjudication Officer considers if appropriate to do so, to the reasonableness or otherwise of the conduct ( whether by act or omission) of the employer in relation to the dismissal, and to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee with S14 (1) of the Act or with the provisions of any code of practice.

The Complainant was employed by a company that went into receivership in 2014. He was then offered a role with the Respondent. He had preferential terms in relation to travel in comparison to other employees of the Respondent. He was paid double time after 4 hours, and more for out of hours calls. He was living in the West of Ireland travelling extensively for his work, and reported into the Dublin office. He had complained of overwork prior to his redundancy, and no appraisals.

The new roles created by the restructuring were a Regional Mobile Engineer and an Operations Support Supervisor. These absorbed his role of Senior Engineer and had lesser terms and conditions. These carried the standard Respondent terms for overtime and travel.

On 28th June 2018 he met his line manager who gave him a letter saying his job was at risk.   The Complainant was going on holidays the following day, and he says there was pressure to get the process done quickly. The first consultation meeting was on 10th July. His line manager was informed that the Complainant’s wife was having serious medical tests at the time, and the Complainant had taken time off. The Complainant was worried about his wife. He was not informed about the two alternative roles until the second consultation meeting on 19th July 2018. The minutes of this meeting are not agreed. The Complainant says he was told the Operations Support Supervisor role was based in the office in Dublin. He alleges he was bullied and coerced into accepting a redundancy payment, and that his questions were not answered. He says he left the meeting stressed and upset.

As the Complainant was taking 2 weeks annual leave at the beginning of August, and asked to work for 1 more month. He thought this was agreed, however, when he returned from holidays, he got a message to return his van.

The Complainant was given the job descriptions but did not apply for the 2 roles of Operations Support Supervisor and Regional Mobile Engineer that were created. There was a role of Fire & Security Engineer available which involved travel. He applied for the role of Fire & Security Engineer, but on 18th August 2018 was told it was too late. He did not lodge an appeal against his redundancy. The Complainant accepted the redundancy payment, and subsequently made a complaint of unfair dismissal. He was out of work for 3 and a half months. He got another job, but his income is reduced by 600 euro per month.

A witness who had been an apprentice with the Respondent from 2017 to February 2019, gave evidence that internal appointee to the role of Operations Support Supervisor continued to carry out the same duties that the Complainant had carried out. The Complainant had been his line manager. He said there was no change when the new person was appointed Operations Support Supervisor. He was not informed of any change. The Operations Support Supervisor continued to tell staff where to go. Initially the Operations Support Supervisor was in the office then he continued to work on the road.

The Respondent says the Operations Maintenance Supervisor fulfilled this role and carried out additional duties.

I am satisfied that the Respondent had a genuine requirement to restructure the business due to a greater volume of business. The two newly created roles were offered to the Complainant but he did not apply for these. It is disputed what occurred at the consultation meeting, but I accept the Complainant’s evidence that he understood the role of Operations Support Supervisor was a Dublin based role. As he lived down in the West, he thought this was not suitable for him, even though in his role as Senior Engineer he had been reporting into Dublin.

The Respondent says the Complainant dismissed the new roles out of hand as they were not in line with his preferential travel terms, however, I am not satisfied that is so. The time-line for consultation was short and the Complainant was on annual leave on 2 occasions during the 6 week consultation period. He had some difficult personal issues also. The Complainant applied for the role of Fire & Safety Engineer role which was not located in Dublin, but he was told this role was withdrawn and he was too late to apply. This was not explained. The HR Manager was unaware of the application for the role by the Complainant and could not throw light on this. I note that the Complainant’s line manager was not present at the hearing to give evidence in relation to these issues.

I find the Complainant was unfairly dismissed and I am cognisant of the EAT ruling in Jeffers v DCC Ireland Ltd UD 169/2000 and the judgement in JVC Europe Ltd v Ponisi [2010] 21 ELR 320 regarding the responsibility of an employer to consider suitable alternative employment for an employee who is being made redundant, particularly in this situation where the Respondent’s business is flourishing.

The Complainant has mitigated his loss since his redundancy but has ongoing loss. It is just and equitable in the circumstances to award the Complainant his financial loss of 19,768.22, less the statutory redundancy payment of 5,122 euro and, and direct payment by the Respondent of 14,646.22 euro.

I find the Complainant was unfairly dismissed. It is just and equitable in the circumstances to award the Complainant his financial loss of 19,768.22, less the statutory redundancy payment of 5,122 euro and, and direct payment by the Respondent of 14,646.22 euro.

Restructuring, redundancy, contrived, travel requirements, suitable alternative employment